August 2005 Archives

August 31, 2005


Let's paraphrase an old joke: a woman walks into the doctor's office for an examination. "You're too fat." the doctor says. "I want a second opinion," says the woman. "You're ugly, too," says the doc.

An interesting firestorm is brewing in New Hampshire over the comments of Dr. Terry Bennett, a Harvard trained physician who prides himself in "telling it like it is." When the story first broke, it appeared that the woman patient had brought a complaint against the doctor for simply saying she was fat. An immediate groundswell of support emerged for the doctor, whose candor, the pundits felt, was in the best interests of the patient. Anti-attorney websites railed at yet another frivolous lawsuit defaming a sincere and well-meaning physician.

As is so often the case in these situations, the first take on the story was somewhat over-simplified. According to a recent article, the NH Board of Medicine is looking into a complaint related not to the comment about being fat, but the racial slur that accompanied it. Here's the quote from the good doctor as presented by the board: "You need to lose weight. Let's face it. If your husband were to die tomorrow, who would want you? Well, men might want you, but not the types that you want to want you. Might even be a black guy."

If that indeed is what Bennett said, you could certainly argue that his comments go well beyond the normal bounds of medical protocol. (The good doc would probably enjoy a recent movie release entitled "The Aristocrats" -- an homage to bad taste in which the same basic -- and obscene -- joke is told by dozens of comics, but that's a different story.)

Bennett is no stranger to this type of controversy. In another case going back to 2001, a patient accused him of suggesting she commit suicide. The documents paraphrased what Bennett, 67, allegedly told the patient, who was suffering from the effects of brain surgery. "(Bennett) spoke to the patient in an unprofessional manner suggesting that she purchase a pistol with which to commit suicide as a means of putting an end to her life."

Bennett denies doing anything wrong. "They're trying to make me the poster boy for bad medicine," he said. "I'm making them the poster boys and girls for insane law enforcement ... for interference of my First Amendment rights." Bennett has his supporters, including many of his patients, among whom is a black man who calls Bennett a personal friend.

So what's the issue here? And is there anything wrong with the candor of Dr. Bennett?

Boundary Issues
I am all for candor in communication. There are undoubtedly some obese people who need to be confronted with the life-threatening risks inherent in their situations. Such confrontation, when done in a caring and supportive manner, can be an effective way of getting someone's attention, especially if they are in denial. But if the quotes are accurate, Dr. Bennett needs a course in communication skills. He has not just violated the standards of good taste. By inappropriately bringing up his patient's sex life -- and by demeaning her further through disparaging references to blacks -- he has crossed a boundary that exists not just in the doctor - patient relationship, but in employer - employee relationships as well. His comments reveal a hostility and an edge that is totally inappropriate. Many of us enjoy a good joke, but Bennett's comments appear to be less an attempt at humor than at gratuitous humiliation. That's just bad medicine. And regardless of what the first amendment pundits say, the Board is doing the right thing by investigating the situation.

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August 30, 2005


Our thoughts and prayers go out to the people of southern Louisiana, Mississippi, and Alabama. In watching CNN last night, I was struck by the bravery of the police, firefighters, and volunteers who put themselves in harm's way to rescue survivors. Health care workers are also doing an amazing job under terrible circumstances: staffing flooded hospitals, tending to refugees in the Superdome, and relocating elderly nursing home residents.

The disaster recovery is boggling in scope, and we will no doubt address it further. For now, here are some health and safety resources for rescue workers:

Worker safety after a flood
Worker Safety in a Power Outage
Emergency Response Resources for Workers
Response, Cleanup and Safety for Workers

The above links were found via Poynter. The Poynter Institute is a school for journalists, future journalists, and teachers of journalists. The website is often a good source of information for large, breaking news stories. In addition to the above links, they also have an extensive list of links to post-disaster health and safety resources for civilians and workers alike. It seems like a good time to give these resources wider circulation.

Online news coverage
In addition to the national media outlets, here are some online resources to local coverage.
NOLA - Breaking News from the Times Picayune
The Irish Trojan - a New Orleans area blogger who is posting frequent updates
Today's Times Picayune - special online edition in pdf
Large graphic of the New Orleans levee system

Some of the following links to online TV resources can be slow loading due to demand.
WLOX - streaming video from Biloxi, MS
WJTV - online video from Jackson, MS
WPMI - online video from Mobile. AL
WLTV - online streaming video (embedded) from New Orleans

Joe Paduda has a post on Katrina's impact on insurance costs in which he links to several articles and offers good commentary.

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August 29, 2005


While on vacation in Acadia, Maine, my family participated in a lobster boat tour, culminating in a visit to the tiny village of Frenchboro on Long Island. As I listened to the informative and entertaining talk by the boat's captain and watched him retrieve a full trap from the ocean floor, I knew there had to be a blog in the compelling story of the lobster.

The life of a lobster is not as dull as you might think. To be sure, as a fledgling lobster, your relationship with your mom would have to be described as pretty remote: you are ferried about as an egg on her tail for the first year or so; you have anywhere from 5,000 to 100,000 siblings. But life is good in the cold waters of the Atlantic. Many of your major predators have been fished to the point of near extinction. Every year, when you get tired of the same old outfit, you shed your shell and grow a new one. It's worth noting that the opportunities for reproduction occur only during the molting period. A hard shell is indeed a formidable barrier to any reproductive behavior. In the summer you hang out along the coast; in the winter, you migrate out to the deep waters, where you forage the warmer bottom waters along with your fellow crustaceans.

Your only problem as a lobster is that your meat is prized in the restaurants and markets of North America and Europe. In Maine alone, the lobster catch has reached 70 million pounds in one year, up from the prior level of 20 million pounds. In an attempt to prevent over-fishing, regulators are trying to strike a balance between the lobsters taken out of the water and those left behind to breed. In Maine, lobster fisherman are required to throw back any lobsters too small and large females with eggs (they carry a tool that quickly shows them whether the lobster is too small or too big for keeping). And because the large females prefer large males (I'll pass on that one), the latter are also tossed back into the deep cold waters (a pretty good deal for the big guys).

One of the most intriguing aspects of lobstering is the matter of licenses: who is able to set traps and who is not. In the small island communities near Acadia, the issue is hereditary. You have to be born in Frenchboro, a small community of 50 hardy souls nestled in the bay of a remote island, or you have to marry someone who was born there. If you move there when you are two months old, it just doesn't count. They have a one room school house up to grade eight for the 15 kids, who then attend a regional high school on the mainland by ferry plus bus (weather permitting). (They also have high-speed internet, so I wonder how many kids will want to stay around to take on their birthright careers.) Only these privileged few are allowed to secure a license to set traps in the designated waters off the coast of the island. If you come from somewhere else and happen to set your traps over the line, someone will cut the ropes, for sure.

Up the coast, Cutler used to be one of the less regulated areas for obtaining a lobstering license in Maine. Then times changed and a man from Connecticut moved in, became harbor master, and brought a little organizational discipline to the field. Some of the locals resented the outsider. Read the fascinating story here.

Ghost Doors
When I first heard of the lobster wars -- the fierce territoriality of the fisherman, the cutting of lines and abandoning of traps -- I wondered what happened to the poor lobsters and crabs caught in the traps. Were they doomed to die in the the narrow confines of the traps? As it happens, there is a way out. Each trap is fitted with a "ghost door" -- an escape hatch that is held in place by hardware that disintegrates after a month or two. If for any reason a trap is not retrieved in the usual week or so, the ghost door will eventually open and the lobsters will be able to escape. Of course, while waiting for the door to open, the bigger lobsters will eat the smaller ones, and the crabs as well. The door opens, and one big lobster crawls out. So much for family ties...

Extraction Economies
Lobster fishing is an extraction industry, as are mining and lumber. The valued natural resources are extracted and sold, usually until the stocks are exhausted. We have seen the results of over-fishing in the great waters of the north Atlantic: the stocks are depleted and the fishing industry is dying. Lobstering is a precarious and hazardous pursuit, but it appears that steps have been taken to ensure that lobsters will continue to thrive in their chosen habitat. I could barely keep my feet in Maine's frigid waters for a minute, but to a lobster, it's a comfortable home, the perfect place to scuttle among the rocks, periodically upgrade the wardrobe, and check out the molting action. Not my idea of fun, but it appears to work for them.

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August 26, 2005


Earlier this week, the Trust for American's Health issued a new report on obesity in Anmerica with the disturbing news that about 25% of American adults are obese. Health Daily News Central has more information on the details of this report. We've also previously blogged about obesity and workers comp.

About the same time this report was released, the news broke that Dr. Tony Bennett is being investigated by New Hampshire's Attorney General and the New Hampshire Board of Medicine for offending one of his patients by telling her she was obese and needed to lose weight. He refuses to apologize for his remarks and faces possible disciplinary action ranging from a reprimand to revocation of his license.

We don't know exactly what the doctor said or the manner in which he said it, but we have to wonder if this woman isn't taking the state's motto of "live free or die" a little too much to heart. Should a doctor only tell patients the health information that they want to hear? We don't think so, and would be interested in hearing your thoughts on the matter.

Reactions from the blogosphere
Obesity is a well defined condition. It responds to weight loss. How can this possibly have caused a stir? -- DB's Medical Rants

He was "reported" for telling a patient the truth. If we cannot tell patients that they are obese - and that they should do something about it - then can we tell patients to stop smoking, or stop drinking - or what about crack cocaine? -- DB's Medical Rants

When did rudeness become a matter for attorneys general? -- Medpundit

The NH Medical Board either a) has information about this that's way more serious than that alreayd announced, or b) is filled with utter morons without enough do.
Time will tell. --

... But if the reporting is accurate, it would seem to be another piece of evidence that contradicts the frequent excuse of tort-reform opponents that aggressive medical malpractice lawsuits are needed to compensate for under-vigilant medical boards. -- Overlawyered.

Kevin, M.D. has posted more reactions from the blogosphere

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August 24, 2005


We talked a bit about "framing" on Monday - the depersonalization that can occur when people are lumped into broad categories or stereotypes, and how that pigeonholing can set the trajectory for future behaviors and events. Thus, an injured worker can make the leap from being your best employee to a rather suspicious "claimant" in one fell swoop. So it was of some interest when, in doing our weekly medical blog rounds, we came upon a post that related to the transformation and depersonalization that often occurs when one becomes "a patient."

Rita Schwab at MSSPNexus points us to a story in The New York Times about the degrading shift from person to patient* that often occurs when one crosses the threshold into a hospital. Rita comments that, often, " ... the courtesies that help lubricate and dignify civil society are neglected precisely when they are needed most, when people are feeling acutely cut off from others and betrayed by their own bodies."

She excerpts this incident from the article:

"Mary Duffy was lying in bed half-asleep on the morning after her breast cancer surgery in February when a group of white-coated strangers filed into her hospital room.

Without a word, one of them - a man - leaned over Ms. Duffy, pulled back her blanket, and stripped her nightgown from her shoulders.

Weak from the surgery, Ms. Duffy, 55, still managed to exclaim, "Well, good morning," a quiver of sarcasm in her voice.

But the doctor ignored her. He talked about carcinomas and circled her bed like a presenter at a lawnmower trade show, while his audience, a half-dozen medical students in their 20's, stared at Ms. Duffy's naked body with detached curiosity, she said. "

If you or a family member has been hospitalized recently, you may identify with some of the stories and issues discussed in the article. It made me recall The Doctor, an old film in which William Hurt played a successful but brusque surgeon who learned what it feels like to have the tables turned after he gets cancer.

(* If the NYT article is archived, you may be able to access it from here with free registration.)

What happens when your injured workers visit the doctor?
Employers need to give some thought to what happens when their injured workers become patients. As Rita points out, this is a very vulnerable point for your employee and the medical milieu can be a highly confusing and frustrating labyrinth. In addition to all the regular depersonalization inherent in encounters with the medical world, employees who seek care under the banner of workers comp can be made to feel like they are somehow less worthy, second-class patients. And in a sense, they are - workers comp rates are generally discounted by fee schedules and network negotiations; further, some providers are reluctant to be involved in what they see as a potentially contentious case.

Employers that truly care about the recovery of their injured workers would do well to assume the role of patient advocate. This entails advance planning by seeking out and meeting the quality medical providers near your facilities and making these doctors familiar with your organization and your return-to-work programs. In representing your work force, you have more buying power and more influence to ensure timely service and priority care than any one individual walking in off the street would. If an employee is experiencing frustration or confusion during the course of treatment, you want to know that and be in a position to help resolve those issues whenever possible. If you don't pay attention to those frustrations, an attorney would be glad to!

Hands-on advocacy
Often, employers think that managing the relationship with providers is the job of the insurer or the contracted network, but we would argue that this is not a relationship that can be "outsourced" on the day-to-day managerial level. Employers need to be an active participant in this relationship, and to ensure that injured employees get top quality care and service. And we would add that a good place to begin is to be more concerned with quality than with discounts when seeking out a network or a doctor -- in fact, we often encourage employers to pay more to ensure good service. Cheap medical care is no bargain; a few extra dollars spent early might be the best bargain of all.

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August 23, 2005


Danger Flying Objects. M.R.I.'s Strong Magnets Cited in Accidents is a fascinating yet scary article from the NYT about safety concerns surrounding MRI equipment. It linked to a site with incredible images of wheel chairs and other objects being sucked into the MRI machines. Yikes - a safety hazard for patients and workers alike! (via MetaFilter).

Ohio Coingate. Investigations into BWC-related problems reeled in a big fish last week with Governor Taft's criminal conviction for ethics violations. Follow the Toledo Blade's ongoing coverage of the evolving Ohio scandals. Or read how these scandals are playing on the blogs.

Racial disparities. HealthLawProf Blog has a post on recent published NEJM reports on the disparity in health care services that face African Americans.

Investigations. Computer Forensics and Its Impact on Employment Litigation - "Computer forensics companies are the private investigators of cyberspace. They can uncover everything from "deleted" files (which do not actually disappear from the computer but are simply moved out of the portion normally accessible) to Web surfing, from profiles to "metadata" (data about data), from e-mail histories to data movement (i.e., evidence about data being written or "burned" to disks). (via our neighbor form the north, Thoughts from a Management Lawyer.)

Pharma. Matthew Holt dicusses the Vioxx trials.

Benefits. Cost of Benefits in Small and Large Businesses (pdf) - a study by the Small Business Administration, found via Michael Fox at Jottings by an Employer's Lawyer

Toxic waste. Jordan Barab discusses Where Computers Go When They Die (And who pays the consequences). In a global economy, we often outsource costly, dangerous work to counties where worker protections are lax or nonexistent. Even though many think of high tech as a very clean industry, high-tech waste can be very toxic. Unfortunately, many Chinese workers may be blocked from reading Jordan's post.

How to attract good workers. Diane Pfadenhauer at Strategic HR Lawyer posts about a survey on attracting and keeping employees.

Work shifts and safety. rawblogXport links to various CDC reports on the impact of shift work and long hours. From one of the reports: "Based on the pooled frequencies across these eight data sets, risk increased in an approximately linear fashion, from morning to night, with an increased risk of 18.3% on the afternoon shift, and of 30.4% on the night shift, relative to that on the morning shift."

Insurance industry results. Joe Paduda reports on 2004 Property and Casualty industry results. As the industry shifts from a seller's to a buyer's market, he advises insurers that, "Now is NOT the time to scrimp on the basics of insurance - risk selection, loss prevention, and claims management."

HR issues. George's Employment Blawg does a great weekly roundup of the HR Employment Blogosphere - check it out if you haven't yet seen this week's edition.

Legal case study. California Labor and Employment law reports on Leegin Creative Leather Products v. Diaz, a case where the employer apparently let emotion rather than reason be their guide.

Veteran disabilities. Disabled Worker Law blogs on the increase in brain cancer deaths and disability claims for veterans of the Gulf War Veterans.

Blogging news: Anita Campbell has a good essay about Blogging Trends - Good and Bad posted at the Egoist ... Martin Grace aka RiskProf came back from vacation with a nice new blog look. We're glad to welcome him back! ... Belated congratulations to Inter Alia on a 3-year blogging anniversary. Thanks for the truly informative array of legal and technical links and resources!

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August 22, 2005


Malcom Gladwell, author of a book called Blink, was recently on a news show discussing the tragic death of Jean Charles de Menezes, the innocent Brazilian who was erroneously killed by British police in their zeal to prevent another London subway bombing. Among the many interesting observations Gladwell made was one that particularly resonated with me. He noted that once police have framed someone as a criminal, all subsequent decisions are made in this context. Innocent behaviors may appear ominous when viewed through the prism of criminality.

In this terrible case, we first heard that the deceased was exhibiting suspicious behaviors - wearing a bulky, seasonably inappropriate coat, running from police, jumping turnstiles, etc. In retrospect, we learned that most of these reports were simply not true. Menezes was on his way to work like every other day, but on this day he had the misfortune to be framed as a terrorist suspect. When a group of police identified and pointed him out as he sat on a subway car, he apparently stood to face them. In the context of an imminent terrorist threat, a simple action became a death sentence.

I haven't yet read Gladwell's book, but his commentary sent me to Amazon reviews. The book is about decision making based on "rapid cognition" - first impressions, snap judgments, framing, and the like - it looks like an interesting addition to a late summer reading list.

"Problem" as the default assumption
We frequently see this type of "rapid cognition" and framing when someone is injured at work. For many employers, workers comp is a hot button issue. It is expensive, confusing, and fraught with potentially sticky employment issues. It may involve litigation. Suspicion runs high. It is an issue that is generally framed as problematic right from the outset. Because the overall context is problematic, every dealing with the employee is viewed through a problem prism. This negative framing can be a self-fulfilling prophecy. A *good* employee is mystified as to why he or she is suddenly treated with suspicion.

When I first came to workers comp, I was quite ignorant of the issue beyond the fact that it was serious enough to be driving some employers here in Massachusetts out of business. The word "fraud" was bandied about readily. Lynch Ryan founder, Tom Lynch, did not think fraud was the nub of the problem. While he allowed that fraud existed, he saw problems as emanating more from the fact that employers were treating what is essentially a human issue as simply a financial equation. He wondered why two very similar injuries could evoke such vastly different responses depending on whether they occurred on or off the job. As an insurance industry outsider viewing the issue as purely a business problem to be solved, he did not bring the baggage of negative framing. Essentially, he approached things much the way my Mom approached the job of raising her seven kids: treat people fairly and consistently, reinforce good behaviors, expect the best, and treat problems as exceptions, not the rule.

Can something as simple as reframing the issue so that the default position in approaching an injured worker is not from the problem perspective yield better results? We obviously feel strongly that it can, and we think that the hundreds of clients we’ve worked with over the years would largely agree. At minimum, it is certainly a good place to start.

Shortly after thinking of the issue of framing and how it relates to workers comp, I was surfing some blogs and came upon an interesting item courtesy of Judge Robert Vonada's blog. Judge Vonada points to a thoughtful poem about an injured worker that speaks to the issue of framing. It is written from the perspective of a son reflecting on his Dad's experience with a work injury. To read No Work Poem #1, scroll down to the August 17 entry.

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August 18, 2005


Should employers be able to prohibit guns at the workplace? ConocoPhillips thinks so and is challenging a recently enacted Oklahoma law to assert that right. In response, the NRA will be launching a national billboard advertising campaign calling for a boycott of ConocoPhillip's gas. The Christian Science Monitor recently discussed this issue in an excellent article entitled Worker right or workplace danger?

Many employers have policies prohibiting weapons in the workplace as part of their violence-prevention measures. Such policies often encompass the employer's total premises, including the parking lot. But at least a few states have laws that override such policies and affirm an employee's right to keep legal arms in their vehicles. Such laws are in force in Kentucky, Minnesota, and Oklahoma - and perhaps some other states.

Oklahoma's law is fairly recent, enacted in response to the firing of a dozen Weyerhaeuser employees in 2002 for having guns locked in their cars in the company parking lot. The OK law offers some protection for employers from liability should one of these guns be used in the commission of a crime, but it's not clear how the law could protect employers from workers compensation claims, such as those that resulted from worker injuries and deaths at Lockheed Martin. Workers comp does not usually come into play in cases of random violence - say a crazed killer walks in off the street and begins shooting employees - but it generally covers incidents that are found to be work-related, such as a disgruntled employee shooting co-workers.

Many employers think that policies against weapons make for a safer workplace. According to The Christian Science Monitor article:

"Although workplace homicides have declined dramatically in the past decade, weapons bans do appear to make workers safer, according to a recent study. Among hundreds of North Carolina companies surveyed, those that permitted guns to be brought to work saw a risk of homicide five times greater than companies that banned guns at work. "We saw a statistically significant increase in the chances of having a killing in any workplace that permitted guns," says Dana Loomis, professor of epidemiology at the University of North Carolina at Chapel Hill."

Do employers have the right to establish policies on their private property? The NRA frames this as a Second Amendment issues, though others would see it as an issue of property rights. Jacob Sullum takes on the issue of The NRA vs. the Constitution in Reason Online:

If the NRA were simply objecting to ConocoPhillips' policy of barring guns from its parking lots, I would have no problem with the boycott. Instead, the NRA is objecting to the company's defense of its right to determine the gun policy on its own property. "We're going to make ConocoPhillips the example of what happens when a corporation takes away your Second Amendment rights," declares NRA Executive Vice President Wayne LaPierre.

That statement makes no sense, since the Second Amendment is a restraint on government. The Second Amendment does not mean a private employer has to welcome guns in its parking lot, any more than the First Amendment means I have a right to give speeches in your living room.

LaPierre insists that "you can't say you support Second Amendment freedoms, then turn around and support anti-Second Amendment companies." I think you can, if you support property rights and understand what the Second Amendment really means.

With the recent passage of the Florida concealed weapons law, the defeat of the ban on certain assault weapons, and the protections from lawsuits recently enacted for the gun industry, it appears we are in an era where gun rights are expanding rather than retracting. How this will affect employers and their anti-violence policies remains to be seen. We'd love to hear your thoughts on these matters - we are particularly interested in the employer viewpoint.

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August 16, 2005


OSHA inspections. Meg Fletcher of Business Insurance reports that OSHA is targeting about 4,000 high-hazard worksites for inspections in the coming year. Inspections will first target sites that "reported 12 or more injuries or illnesses resulting in days away from work, restricted work activity or job transfer for every 100 full-time workers in 2003. Nursing homes and random sites will also be inspected.

Ask the Donald a question about your business. We are pleased to welcome latecomer Donald Trump to the blogisphere. Donald, we are always happy to help out any noobie bloggers, so let us know if you have any questions. Meanwhile, if any of our readers have any questions they would like to ask the Trumpmeister, his site also features "Trump University" where you can pose questions to Mr. Trump or to his circle of experts.

HR acronyms. Does industry jargon leave you flummoxed? We have several workers comp and managed care glossaries listed among the tools in our sidebar. Thanks to B. Janell Grenier of Benefitsblog, we will also add a new tool � the Benefits Acronym Lexicon.

More costs for Ohio BWC. The Toledo Blade reports that the costs to investigate the widening Ohio Bureau of Workers Comp scandals are estimated at more than $6.5 million as the state hires forensic accountants, lawyers, financial consultants, and appraisers. The investigations focus on a series of losses ensuing from questionable investments, including up to $13 million lost in an investment in a rare coin fund and $215 million lost in a failed Bermuda hedge fund. According to the Blade, the scope of the investigation is complex: "There are already two convictions, three grand juries, 144 bureau investment managers under review, 420,561 pages of coin-fund records, and as much as $13 million missing from the coin funds managed by Tom Noe, the prominent Republican contributor at the center of the scandal."

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August 15, 2005


Falls are one of the leading causes of injury and death, both on and off the job. As one might guess, construction workers are particularly at risk - falls are the most prevalent source of fatalities in that industry, dwarfing other sources.

An Analysis of Fatal Events in the Construction Industry 2003 is a study that William Schriver of the Construction Industry Research and Policy Center, University of Tennessee, Knoxville, conducted for OSHA and the Centers for Disease Control. In the study, Schriver lists the leading causes of death:

OSHA inspected 707 fatal construction incidents (excluding non-work related causes), involving 730 fatalities, in calendar year 2003. Five of the 30 proximal causes classified in this report accounted for 296 (41.9 percent) of the fatal events investigated. They were: (1) Falls from/through Roofs: 76 events (10.7 percent); (2) Falls from/with Structures: 74 events (10.5 percent); (3) Crushed/Runover of Non-Operator of Construction Equipment: 56 events (7.9 percent); (4) Electrocution by Equipment Contacting Energized Wire: 47 events (6.6 percent); and (5) Electrocution from Equipment Installation/Tool Use: 43 events (6.1 percent).

Human Fall Traps
J. Nigel Ellis has spent his career studying falls and why they occur. In Fall Protection: Traps that Workers Can't Avoid, a recent article in, he discusses the phenomena of what he calls "human fall traps" or HFTs. These are situations in which falls are almost inevitable. Examples include hole covers that present the illusion of a solid walking surface, vertical handgrips, and open pits.

"There is no defense against HFTs because we can't perceive them until it is too late. This is because we are human; a good analogy might be to say "you needed eyes in the back of your head" to see that rock coming. It is worse than that with HFTs. The cautionary phrases "Watch Your Step" or "Be Careful," often used in toolbox meetings or training programs, don't help. Training can't protect against hazards that can't be seen before it's too late."

In this excellent article, Ellis describes 14 specific HFT scenarios. He appeals to architects, engineers, and building contractors to be aware of and eliminate these hazards at the work site. Graphic examples of some of the hazards Ellis discusses are illustrated in a 2004 NIOSH alert that presents five case studies of worker fatalities from falls through skylights and roof and floor openings. This report also offers some recommendations for prevention.

Thanks to rawblogXport for the pointer to the Ellis story. We find a lot of interesting items at this fine weblog that outlines its mission as "union news, workers rights, construction, safety, and irony" - a tip of the hat to the authors.

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August 11, 2005


There are many demanding activities in life that come with a wide margin of error -- parenting, for example. For most of us, a few moments of inattention at work will not result in any serious consequences (as long as we are not performing brain surgery, or installing steel beams 30 stories off the ground). But one of the least forgiving activities in our busy lives is driving. Here, a moment of inattention (an animated conversation on a cell phone) can be disastrous. The risks of driving, considerable at any time, are magnified a thousand fold when people drive under the influence of alcohol.

We have blogged a number of driving catastrophes, where highly successful and productive individuals have ruined their lives (and the lives of others) by driving drunk. Now, in an article by Steve Chawkins in the Los Angeles Times, we read of a Nobel laureate in physics, John Robert Schrieffer, who faces prison time for slamming into a van at more than 100 mph last year, killing one passenger and injuring seven others in Santa Maria, Calif.

Schrieffer won the Nobel Prize in 1972 when he was just 26, for a theory he helped formulate that explained superconductivity — the disappearance of electrical resistance in certain metals and ceramic materials under extremely cold temperatures. (If you are interested in Schrieffer's actual contribution to science, you can read his Nobel acceptance speech here.) The theory was developed in 1957, sparked in part by an insight that Schrieffer experienced while riding on a New York subway.

He undoubtedly wishes he had been on a subway on the day of the crash. Instead, he was barreling down the road in a new Mercedes, driving on a suspended Florida license. He had nine speeding tickets on his record. On U.S. Highway 101 near Orcutt, Schrieffer struck a van at 111 mph. He has already pleaded no contest to vehicular manslaughter and is soon to be sentenced to prison.

A San Diego attorney representing the plaintiffs in the wrongful-death lawsuit against him called his scientific credentials irrelevant.

"From our standpoint, his pedigree doesn't matter," Stacy King said. "The only thing that matters is that he was driving recklessly." Actually, one other thing matters to the attorney: Schrieffer has assets worth going after.

I cannot help but wonder at the strange tale of this extraordinary man. Fifty years ago he had an idea that was to contribute significantly to the growth and development of technology. He achieved the dream of thousands of scientists across the globe. When he stood on the stage in Sweden to receive his prize, no one could foresee the plunge that the fates had in store for him. A beautiful mind, capable of exquisite concentration, was rendered useless by alcohol. Schrieffer became just another jerk behind the wheel of a 5,000 pound missile. Now he'll have plenty of time and leisure to figure out just what it all means.

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August 10, 2005


You may think your job has some hazards, but I would guess these risks pale beside the dangers of riding a thoroughbred horse. We all think of jockeys as the vertically challenged masters of very impressive creatures, which indeed they are. An average thoroughbred weighs about 1,100 pounds. The jockey trying to control him is not allowed to tip the scales in the buff above 111 pounds.

Jockeys have been trying to improve their working conditions since the 1940s, when a few riders led by the legendary Eddie Arcaro and Jonny Longden met in secret to develop a strategy. Their clandestine efforts led to the formation of the Jockey's Guild -- for an extensive and fascinating history, check out their website. You will learn that the legendary Bill Shoemaker retired in 1990, only to suffer a terrible auto accident in 1991, which left him paralyzed. The cause of the accident? Reaching for his cell phone!

The fate of jockeys is a state by state issue. New York seems to have led the way, creating a special fund to cover work-related injuries for jockeys racing at New York tracks. It's funded by a small flat fee ($420 a year paid by owners and trainers), a stall fee, and a percentage of winner's purses capped at $2,000. New Jersey, Maryland and California have followed suit, addressing not only workers comp coverage, but safety related issues as well. The Guild fought for and achieved a universal safety standard that requires helmets and padded vests for jockeys.

If you think that the legendary horse racing state of Kentucky is in the vanguard of protecting jockeys, think again. The Blue Grass state has yet to solve the problem of comp coverage for jockeys. The Jockeys want owners and racetracks to foot the bill for expanded workers’ compensation coverage (as is the case in New York), while others in the industry favor jockeys contributing a portion of the cost (yet another incarnation of "employees" versus "independent contractors"!). When in doubt, set up a blue ribbon panel, which is just what Governor Earnie Fletcher has done. He's supposed to hear back from them by September 1.

Health and Safety Concerns
Why is the Jockey Guild so focused on the minimum weight? They note that the saddle, boots, silks, and pants weigh five pounds. In order to reach a total weight of 116 pounds, you have to weigh a waiflike total of 111 pounds, stripped. It's not easy for adults to do this. As a result, jockeys are engaging in unhealthy practices such as purging, using diuretics and sitting in sweatboxes to meet designated race weights. These unhealthy practices can lead to immediate problems with concentration and endurance during a race and long-term catastrophic health conditions such as kidney and liver failure. A jockey recently collapsed and died after a race, with his pre-race weight loss a possible factor.

The Guild is also trying to implement a wide ranging agenda of benefits to improve conditions for jockeys, including health and medical plans, universal workers' compensation coverage, a uniform mount fee scale, on-track ambulances, safer starting gates, safety rails, and other important issues. So the next time the trumpets blare and you hear the sentimental notes of "My Old Kentucky Home," think of the men and women in colorful silks perched on the backs of the magnificent beasts. Theirs is a fast-paced and hazardous profession, indeed.

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August 9, 2005


Joe Paduda has been doing so much heavy lifting in his diligent tracking of the many investigations into insurance wrongdoing that we are thinking he may need to change his blog name to "Scandal Central." It's almost like one of those whack-a-mole carnival games - new developments seem to keep popping to the surface daily.

Today, Joe reports on a guilty plea filed by an underwriter from a Liberty Mutual subsidiary who was submitting unattractive bids to Marsh McLennan. This enabled the broker to steer clients to insurers with the best commissions.

Yesterday, Joe reported on similar charges being levied against Arthur Gallagher & Co, the offshoot of a probe into practices involving several large public entities, an investigation that Florida's Attorney General says may involve bid rigging. This follows on the heels of other Florida problems that surfaced in Broward County involving Gallagher Bassett and Corvel.*

Last Friday, Joe blogged about 14 insurance execs from Marsh, AIG, and Zurich who pled guilty to various charges in the Spitzer investigations.

He's also recently updated the Ohio coingate developments, a many-headed hydra of scandal that is now ensnaring Governor Taft. Some other problems have been bubbling to the surface with the Ohio Bureau of Workers Compensation, too, in the form of unusual markups paid to servicing hospitals.

A collective black eye
Whether we want to or not, all of us who work in the industry have front row seats to these sorry spectacles since they involve some of the industry "leaders." As an industry, we will be years restoring good faith with clients. And though I have no sympathy for the malefactors, I do feel badly for some of the decent, conscientious workers in the scandal-riddled firms. If things follow the patterns of other recent corporate scandals, a few bigwigs may or may not be called to account, but the real price may well be paid by the hundreds, if not thousands, of honest workers when the inevitable job reductions and reorganizations ensue.

Many of these firms were the trusted vendors that employers turned to as stewards of their loss experience and as watchdogs for fraud. Ironically, while the back door was being guarded by pit-bulls to prevent a few wayward employees from making off with the piggy bank, the front door was wide open so the serious thieves could saunter off with the safe.

The bottom line: caveat emptor
We've long been proponents of the idea that employers need to be active, savvy buyers and managers of their workers comp programs, but never more so than now. For most employers, workers comp is not simply a matter of dollars and cents (although that is reason enough to pay attention), it is also a matter of employee relations and reputation management. When hiring vendors to assist in these matters, we've always encouraged employers to buy for quality, not for price, but the fact that these scandals are tarnishing some of the "quality" names in our industry says that employer scrutiny doesn't reach deep enough. And, for the most part, we aren't talking about the mom and pop employer here - many of the employers who were gouged are large corporations with legions of lawyers and accountants. It sure looks like it's time for buyers to step up due diligence in the "trusted vendor" selection process.

*edited on 8/10. The second news item dealt with Gallagher Bassett, not Arthur Gallager & Co.

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August 8, 2005


Our co-blogger (is that the term of art?) Julie Ferguson mentions the latest Robert Wood Johnson Foundation report (PDF) on the status of the uninsured in America. We suspect that there is a strong correlation between the costs of workers compensation and the prevalence in the workforce of workers who lack health insurance. The latest study shows that at least two of the really high cost states for comp, Texas and Florida, also have far above average percentages of workers who lack health insurance (26% and 20% respectively).

The Obvious
The report finds that adults who lack health care coverage are more likely to not see a doctor when needed due to cost than adults with coverage. I'm not looking for an "amen!" here -- a simple "duh!" will suffice. It seems pretty clear that adults without health insurance will postpone treatment as long as they can. They will try to ignore symptoms. Perhaps most important, they are unlikely to work with a doctor to develop a concrete strategy to enhance their own health over time. Faced with the same problems we all face -- depression, bone loss, sleep disorders, etc., -- they are far more likely to muddle their way through rather than pay a doctor's examination fee out of pocket. Until they drag themselves into an emergency room, the benefits of modern medicine and pharmacology are simply beyond their reach.

The report goes on to say that adults who lack health care coverage are more likely to report poor or fair health than adults with coverage. Here the percentages are a bit surprising: 20.4 per cent of the uninsured report fair to poor health, compared to 11.7 per cent for the insured. I would have expected the pessimism among the uninsured to be higher. It's a tribute to their determination and optimism that 80% of the uninsured think they are in good health.

Workers Comp Implications
As health costs go up, more and more employers are pulling out of the system. The expense is just too great. Or they ask employees to pick up more of the burden -- not just in the premiums, but in the co-pays for office visits and medications. By contrast, workers comp benefits stand out like the proverbial sore thumb. No premiums for the employee. No co-pays and no deductibles, ever. On top of that, employees can collect indemnity benefits for time away from work. It's a good deal, and it looks better every day as the cost of conventional health insurance shoots upward.

Here's one more point of convergence between rising health care costs and workers comp. Regardless of the optimism demonstrated by the uninsured in this report, workers lacking health insurance are more at risk for poor health. In avoiding the health care system, in ignoring symptoms, they are at constant risk for deteriorating health. They bring these problems to work, where they are at higher risk for injury because their non work-related symptoms are not being addressed. Here we have a prescription for trouble that is all too common in the American workplace. Until we solve the health coverage conundrum, there is the distinct possibility that, by default, workers comp will end up footing the bill for the unaddressed health problems of the uninsured.

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August 6, 2005


Today, a smorgasbord - the weekend is a good time to clean my bookmark file of a variety of tips and tools that I've been collecting:

Experience Modification Factors - Understanding the Workers Compensation Modification Factor is a good 3-page overview of the factors that drive an e-mod. Also of note, Top Ten Ways to Reduce a Mod - the most frequent reader responses to a survey conducted by Specific Software Solutions.

Fleet Control - The LWCC (the Louisiana Workers Compensation Corporation) notes that vehicle accidents are the state's leading cause of workplace fatalities - this is acutally pretty much true regardless of geography. The folks at LWCC have compiled a useful sheet of Fleet Control Tips designed to help employers reduce risk.

HR Weblogs - We've unearthed a few notable HR weblogs to add to our sidebar. HR's Brand New Experience by Regina Miller explores the relationship of HR practices and branding. We're interested in this topic because we believe the way that employers treat employees has an enormous impact on how the company is perceived in the marketplace. This blog is part of the BNet family of business weblogs which also include our friend, Anita Campbell. And we’ve also recently discovered the Human Resource Megablog, a blog aggregator that culls out some of the best of the HR blogs daily. Topics include everything from recruiting to employment law - and we are happy to be included in the blogroll for workers compensation!

Occupational Health News - Occupational Health Research has a very useful Occupational Health News & Analysis page that is updated monthly by Dr. William L. Newkirk. He selects a good array of important occupational health stories, primarily from government agencies. Here are links to a few recent stories:
CDC Report on Exposure to Environmental Chemicals - National Report on Human Exposure to Environmental Chemicals
Contact Lens Use in a Chemical Environment - NIOSH issues new guidelines
ACIP Recommendations for the Upcoming Flu Season - recommendations from the Advisory Committee on Immunization Practices for the 2005-2006 flu season

Research on the Uninsured - The CDC and the Robert Wood Johnson Foundation issue an annual report on the uninsured every May. We've linked the report in 2004, but hadn't issued an update yet this year. According to the 2005 report, Characteristics of the Uninsured - A view from the States (pdf), more than 20 million working adults do not have health coverage. "In eight states, at least one in five working adults is uninsured. In 39 other states, at least one working adult in every 10 does not have health care coverage."

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August 4, 2005


The Insider is intrigued with the issue of independent contractors. Some might say we are obsessed. Truth is, in the ever changing world of business, with conventional definitions being challenged every day, yesterday's straight-forward distinction has become today's ambiguity.

Take the case of Michael Rowe, outlined by Andi Esposito in the Worcester Telegram and Gazette (PDF file -- and in the interests of full disclosure, the Insider is quoted in this piece). An entrepreneur, Rowe started his business, Claims Outsource, Inc., to help insurance companies handle over-flow claims. He secured the services of 50 independent contractors who, working from home on their own schedules, handled claims passed from the insurer, to Rowe, to the contractor. Rowe thought it was a good solution to an old problem. Unfortunately, he ran into a new solution to another problem, which resulted in the abrupt demise of his business.

When work slowed down, one of Rowe's "independents" filed for unemployment insurance. At the hearing, Rowe asserted that all the claims handlers were truly independent. But the examiner determined that the attorney general's new criteria for independence were not met. So Rowe was slammed with a retroactive bill for $56,000 for unemployment insurance. Stunned and defiant, he shut the business down.

Thus far, Rowe's only problem is unemployment insurance. I wonder what will happen if one of his contractors decides to file a workers compensation claim for an "on the job" injury. Then he will be faced with an additional bureaucratic nightmare, this time involving failure to cover "employees" for work-related injuries.

Nationwide Problem
The tightening of criteria for independence is well-motivated. States are tired of footing the bill for injured subcontractors at construction sites, where no one seems to work for anyone else, but the house gets built nonetheless. In trying to force insurance and benefit coverage deeper into the construction world, Massachusetts has cast a very wide net that is pulling in entrepreneurs like Rowe, who is not really trying to deceive anyone. Rather, he is pursuing a flexible business model that just happened to run into a buzzsaw on the compliance side.

Neighboring state Rhode Island has tried to solve the subcontractor dilemma in a different way. They require "independent contractors" to sign a form self-certifying that they are indeed independent. I thought that sounded like a good approach, until I heard from an investigator in Tennessee, which has a similar program. According to the investigator, general contractors abuse the system by forcing their subs to sign the documents, even though they are not truly independent. Every solution, it seems, triggers unintended consequences.

The beleaguered Mr. Rowe points angrily to FedEx drivers, who are classified as 'Independent contractors." If his handful of at-home claims consultants are employees, then FedEx drivers are employees, too. He is right, of course, but it's an argument that won't solve his problem. A little guy facing enormous financial liabilities, he's already thrown in the towel. The big guys such as FedEx have plenty of legal clout. They are prepared to fight the battle one court room at a time, and then appeal and appeal, all the while delaying any ultimate losses while they pursue their merry -- and profitable -- ways.

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August 2, 2005


We recently gave BP credit for exercising some prudent damage control following the major explosion in March that killed 15 people and injured hundreds in Texas City. But when companies are forced to go into damage control mode with any frequency, it cannot bode well for their stability -- or for the safety of their workers. We read in the County News of Galveston TX (the oldest newspaper in that state and worth perusing in and of itself) that the BP plant experienced yet another explosion on July 28. This time, fortunately, no one was hurt.

Wrong Pipe
Members of BP’s engineering staff have already concluded the first part of their incident investigation and have determined that the wrong kind of piping was used. The pipes that had been installed as part of a regular maintenance program, made of carbon steel, were unable to handle the high temperatures in the refinery process. The proper piping requires chromium alloy steel. While it sounds like a simple problem, you cannot tell the difference in the two pipes just by looking at them. In any event, the piping failed, causing flammable material to spill and resulting in an explosion and fire.

Whose mistake?
The wrong pipe was installed by a contractor, La Porte based J.V. Piping. They performed the work under the supervision of BP staff. As with any good accident investigation, you have to keep asking "why"? We know that the wrong piping was used. Why was this piping installed? Were the proper specs provided to the contractor -- or did BP fail to specify the use of chromium alloy steel? Could the BP supervisors overseeing the work have identified the problem? Or is the root cause further upstream, in the procurement process?

Safety: Stand Down or Fall Down?
The article quotes BP spokesman Hugh Depland as saying that the company was conducting a series of “safety stand downs” whereby workers and safety directors meet individually about safety protocols, procedures and checks.

“It’s about looking everybody in the eye and getting a one-on-one commitment to operating safely,” said Depland. “We have had an incident here, an unfortunate incident, (but) we need to stay committed and stay focused to avoid creating a situation (that could result in another incident).”

You can look people in the eye as long as you like, but if you use the wrong materials to construct your refinery process, no safety drill is going to catch it -- and your employees are constantly at risk. Faced with a number of serious incidents over the past months, BP's management has an enormous challenge: operating and at the same time upgrading an aging facility to meet stringent safety standards. They have to make sure that every aspect of their volatile process is engineered properly and that safety procedures are followed every step of the way. I have the sinking feeling that we will see more damage control in the coming months, as BP tries to get a handle on what is clearly a very hazardous and unstable situation.

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August 1, 2005


Early in my working life, I was employed for a local plastics manufacturer. Among my responsibilities, I was charged with the happy task of planning an annual recognition dinner for longterm employees. It was a big event because we had many 15-, 20-, and 25-year veterans in the work force. Sadly, the concept of longterm employment seems almost quaint today, but at that time, it was held in high regard by both employers and employees alike.

The employment landscape has changed considerably over the last two decades. By and large, neither employers nor employees seem to have much loyalty to each other today. The influence of Wall Street has been corrosive. With companies facing intense pressure to maximize each quarter's results, many have found that mass layoffs and outsourcings have met with approbation in the form of a few penny gain in stock price. This tendency to immediate gratification has had other negative consequences on the business climate, as well. It appears that at least a few business executives may have sufficient time to meditate on these matters from the privacy of their jail cells.

Breaking away from the herd
It's a breath of fresh air to read a business success story about Costco, a retail company that is bucking this trend, and its forward-thinking CEO, Jim Sinegal. In a New York Times article entitled How Costco Became the Anti-Wal-Mart, Steven Greenhouse reports on how the company’s strong commitment to its employees has enhanced its mission to provide excellence in quality, service, and pricing for its customers:

Costco's average pay, for example, is $17 an hour, 42 percent higher than its fiercest rival, Sam's Club. And Costco's health plan makes those at many other retailers look Scroogish. One analyst, Bill Dreher of Deutsche Bank, complained last year that at Costco "it's better to be an employee or a customer than a shareholder."

Mr. Sinegal begs to differ. He rejects Wall Street's assumption that to succeed in discount retailing, companies must pay poorly and skimp on benefits, or must ratchet up prices to meet Wall Street's profit demands.

Good wages and benefits are why Costco has extremely low rates of turnover and theft by employees, he said. And Costco's customers, who are more affluent than other warehouse store shoppers, stay loyal because they like that low prices do not come at the workers' expense. "This is not altruistic," he said. "This is good business."

While the article doesn’t mention anything about workers comp, if we had to guess, we would think that Costco probably outperforms others in its industry in this regard, too. We generally find that employers get the workers compensation results they deserve.

Does good management pay off?
Does Costco's employee loyalty and social responsibility pay off? Don't investors favor the Chainsaw Al approach to employee management? Apparently not:

Costco's stock price has risen more than 10 percent in the last 12 months, while Wal-Mart's has slipped 5 percent. Costco shares sell for almost 23 times expected earnings; at Wal-Mart the multiple is about 19. Mr. Dreher said Costco's share price was so high because so many people love the company. "It's a cult stock," he said.

And despite the company enjoying such success, in Sinegal we have a CEO that earns somewhere in the neighborhood of a half million dollars a year, salary and bonuses combined - a pittance for the CEO of a company that ranks in the top 30 of the nation's largest revenue producing companies.

Yet some Wall Street gurus are dissatisfied with results. Some think Costco is being too generous to its employees. Some think that raising prices would produce better margins. Go figure – these are the same people that cheered on the high tech bubble.

Meanwhile, some Costco workers are hunkering down for a long stint of employment.

Beth Wagner, 36, used to manage a Rite Aid drugstore, where she made $24,000 a year and paid nearly $4,000 a year for health coverage. She quit five years ago to work at Costco, taking a cut in pay. She started at $10.50 an hour - $22,000 a year - but now makes $18 an hour as a receiving clerk. With annual bonuses, her income is about $40,000.
"I want to retire here," she said. "I love it here."

You can read more on the Costco story at Seattle Weekly's story, Company of the People.

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